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R v Chevathen & Dorrick

R v Chevathen & Dorrick

Case [2001] QCA 337 24 August 2001

Criminal Liability

Mens Rea & Intention

Appeal

Misdirection and Non Direction

Improper Admission or Rejection of Evidence

Criminal Law

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SUPREME COURT OF QUEENSLAND

CITATION: R v Chevathen & Dorrick [2001] QCA 337

PARTIES: R
v
CHEVATHEN, Trevor Charles
(appellant)
DORRICK, Emily Joan Elisha
(appellant)

FILE NO/S: CA No 301 of 2000
CA No 31 of 2001
SC No 344 of 2000

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction

ORIGINATING COURT:
Supreme Court at Cairns

DELIVERED ON: 24 August 2001

DELIVERED AT: Brisbane

HEARING DATE: 21 June 2001

JUDGES: McMurdo P, Thomas JA, Cullinane J
Judgment of the Court.

ORDER: Appeals allowed; convictions set aside; new trial ordered.

CATCHWORDS:
CRIMINAL LAW – CRIMINAL LIABILITY AND CAPACITY – MENS REA – ANCILLARY LIABILITY AIDING, ABETTING, COUNSELLING OR PROCURING – where the appellant mother and step father were convicted of the murder of their four year old daughter – where the child’s death was caused by fatal head injuries consistent with repeated blows to the head – whether each appellant had individually or in combination killed the deceased with the requisite intention – or if each appellant had knowledge of the other’s requisite intent

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – MISDIRECTION AND NON DIRECTION – where each appellant lied about how the child received the fatal injuries – circumstances in which such evidence may be led - Edwards direction not necessary but where a direction should have been given against the danger of concluding that a person must be guilty because they have told lies – Richens, Zoneff and Broadhurst considered

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – MISDIRECTION AND NON DIRECTION – evidence of uncharged acts of violence towards the child by both appellants rightly admitted as relationship evidence and as relevant to issue of intent – where in particular in an emotive case the jury ought to have been warned against possible misuse of such evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – MISDIRECTION AND NON DIRECTION – PRESENTATION OF DEFENCE CASE – where the trial judge failed to adequately put the defence case – where it was necessary to distinguish between evidence of callousness and specific intent to cause grievous bodily harm

Broadhurst v The Queen [1964] AC 441, considered
Edwards v The Queen (1992) 178 CLR 193, distinguished
Hoch v The Queen (1988) 165 CLR 292, distinguished
KRM v The Queen (2001) 75 ALJR 550, considered
Lowrie & Ross (1999) 106 A Crim R, considered
Pfennig v The Queen (1995) 182 CLR 461, distinguished
R v Brennan [1999] 2 Qd R 529, considered
R v Callaghan [1994] 2 Qd R 300, considered
R v Cox [1986] 2 Qd R 55, considered
R v Lock [2001] QCA 84, CA No 151 of 2000, 13 March 2001, considered
R v Lowrie & Ross [2000] QCA 405; CA Nos 95 and 92 of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Chevathen & Dorrick

Details

AGLC: R v Chevathen & Dorrick [2001] QCA 337
Case: [2001] QCA 337
Decision Date: 24 August 2001

CaseChat Overview and Summary

The case of R v Chevathen & Dorrick involved the convictions of a mother and her stepfather for the murder of their four-year-old daughter, who died from fatal head injuries consistent with repeated blows to the head. The primary legal issues before the court were whether each appellant had individually or in combination killed the deceased with the requisite intention, or if each appellant had knowledge of the other’s requisite intent. Additionally, the court examined whether there were any errors in the admission or rejection of evidence, and if there were any misdirections or non-directions given to the jury.

The court determined that there were several critical errors in the trial. Firstly, the appellants had lied about how the child received her fatal injuries, and the circumstances under which such evidence could be led were mishandled. While an Edwards direction was not necessary, the court held that a direction should have been given against the danger of concluding that a person must be guilty because they have told lies. This was considered in light of previous cases such as Richens, Zoneff, and Broadhurst. The court also found that evidence of uncharged acts of violence towards the child by both appellants was rightly admitted as relationship evidence and as relevant to the issue of intent, but the jury should have been warned against the possible misuse of such evidence, especially in an emotive case.

Furthermore, the court found that the trial judge failed to adequately present the defence case, and it was necessary to distinguish between evidence of callousness and specific intent to cause grievous bodily harm. The court concluded that these errors were significant and warranted a new trial.

The appeals were allowed, the convictions set aside, and a new trial was ordered. This outcome reflects the court's finding that the errors in the trial were substantial enough to undermine the fairness and reliability of the original verdict.

Orders

Orders of the court

Appeals allowed; convictions set aside; new trial ordered.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Chevathen & Dorrick [2001] QCA 337

Most Recent Citation

R v York [2001] QCA 408

Cases citing this decision · 11 of 11 shown

R v Draper
[2015] QCA 66 Para 19

…el at trial in not requesting such a direction.[80] [78]I note that the appellant referred to the decision of this Court in R v Chevathen and Dorrick [2001] QCA 337; (2001) 122 A Crim R 441 which was decided before Dhanoha . The issue in that case concerned the failure to give an Edwards direction in circumstance…
R v Scott
[2011] QCA 343 Para 1

…directions were adequate to convey to the jury that they should eschew reasoning to guilt of murder from the lies. [28](2001) 122 A Crim R 441; [2001] QCA 337. [29]At [32].…
R v Roach
[2009] QCA 360 Para 1

…to her previously injured arm. (It was not suggested, though, that he had made any regular practice of harming her left arm.) [4][2003] QCA 98. [5][2001] QCA 337.…
R v Kingston
[2008] QCA 193

…L v The Queen (2008) 82 ALJR 723; [2008] HCA 16, applied R v Chevathen & Dorrick (2001) 122 A Crim R 441; [2001] QCA 337, cited R v Etherington (1982) 32 SASR 230, cited R v Garner (1963) 81 WN (Pt 1) (NSW) 120, cited R v LR [2006] 1 Qd R 435; [2005] QCA 368, cited R v Ward [1998] QCA 329, distinguished COUNSEL:…
R v. Walker
[2007] QCA 446 Para 1

…27; CA No 240 of 1999, 15 February 2000, McMurdo P [43]-[46]; Davies JA and Jones J agreeing on this point. [5](2001) 122 ACrimR 441, 449 [37]-[38]; [2001] QCA 337. [6][2001] QCA 338; CA No 77 of 2001, 24 August 2001, Thomas JA [31]-[32]. [7]And see also s 130 Evidence Act 1977 (Qld).…
R v Mitchell
[2007] QCA 267

…ox & Martin [2001] QCA 272; CA Nos 304 & 307 of 2000, 20 July 2001, considered R v Chevathen & Dorrick (2001) 122 A Crim R 441, [2001] QCA 337, cited R v Taylor , unreported, Court of Appeal of England and Wales, No 9703549/W2; 12 May 1998, considered R v Wehlow (2001) 122 A Crim R 63; [2001] QCA 193, considered…
R v MAQ and RX; ex parte
[2006] QCA 355

…evidence Criminal Code 1899 (Qld) s 7(1), s 320A, s 364(a), s 590AA, s 668A(1) Evidence Act 1977 (Qld), s 132B Chevathan and Dorrick [2001] QCA 337; (2001) 122 A Crim R 441, considered Conway v R (2000) 172 ALR 185, considered Makin v Attorney-General for New South Wales [1894] AC 57, considered Pfennig v The Qu…
R v Evans
[2004] QCA 458

…(1997) 191 CLR 275, referred to KRM v The Queen (1997) (2001) 206 CLR 221, cited R v Chevathen and Dorrick [2001] QCA 337; CA No 301 of 2000 and CA No 31 of 2001, 24 August 2001, discussed R v Glattback [2004] QCA 356; CA No 53 of 2004, 1 October 2004, followed COUNSEL: A J Rafter SC for the appellant/applicant…
R v Glattback
[2004] QCA 356 Para 1

…sion of the offence, added to the considerable volume of testimony on the topic. He reminded the court of its observations in R v Chevathen & Dorrick [2001] QCA 337, at [42], where the court wrote that in that case it was necessary that some warning be given against misuse of “the evidence of the earlier assaults…
R v Ryan
[2002] QCA 92 Para 1

…ad at least offered an explanation of his movements to the police. [19] R v Callaghan [1994] 2 Qd R 300, 302-304; R v Chevathen & Dorrick [2001] QCA 337, para 26.…
R v York
[2001] QCA 408 Para 1

…275 [5](1998) 194 CLR 106 [6]Above. [7](1998) QCA 303, para 31 [8][2000] QCA 482, especially paras 8, 9 and 15 [9][2000] QCA 54, para 23 [10][2001] QCA 337, paras 34 to 38 [11][2001] QCA 338, paras 27 to 41 [12] KRM above at para 25, citing Noor Mohamed v The King [1949] AC 182, 192-193, 195 [13][1894] AC 57, 65…

View all 11 citing cases →

Cases cited in this decision · 10 of 10 shown

R v Self
[2001] QCA 338 Para 1

…efe [2000] 1 Qd R 564. [16]Examples of such other forms of evidence are given by McHugh J in KRM above at paras 22 to 25; cf R v Self [2001] QCA 338, CA No 77 of 2001, 24 August 2001 at paras 27 to 41…
R v Lock
[2001] QCA 84 Para 1

…grievous bodily harm. [17] RPS v The Queen (2000) 74 ALJR 449, 458 at paras 41, 42. [18][2000] QCA 244; CA No 317 of 1999, 20 June 2000. [19][2001] QCA 84; CA No 151 of 2000, 13 March 2001.…
KRM v The Queen
[2001] HCA 11 Para 1

…rous a test[16]. [11](1988) 165 CLR 292, 294-296. [12] Pfennig v The Queen (1995) 182 CLR 461, 480. [13] Pfennig, above at 464-465. [14](2001) 75 ALJR 550 at paras 20 to 31. [15] R v O’Keefe [2000] 1 Qd R 564. [16]Examples of such other forms of evidence are given by McHugh J in KRM above at paras 22 to 25; cf R v Se…
R v Lowrie & Ross
[2000] QCA 405 Para 1

…ly received. The fact that they were inconsistent with other admissions that were received does not make them inadmissible. [7] R v Lowrie & Ross [2000] QCA 405; CA Nos 95 and 92 of 2000, 3 October 2000, at paras 43, 47.…
R v Mogg
[2000] QCA 244 Para 1

…rawn between callousness and specific intent to cause grievous bodily harm. [17] RPS v The Queen (2000) 74 ALJR 449, 458 at paras 41, 42. [18][2000] QCA 244; CA No 317 of 1999, 20 June 2000. [19][2001] QCA 84; CA No 151 of 2000, 13 March 2001.…
RPS v The Queen
[2000] HCA 3 Para 1

…e would have expected the distinction to be drawn between callousness and specific intent to cause grievous bodily harm. [17] RPS v The Queen (2000) 74 ALJR 449, 458 at paras 41, 42. [18][2000] QCA 244; CA No 317 of 1999, 20 June 2000. [19][2001] QCA 84; CA No 151 of 2000, 13 March 2001.…
Pfennig v the Queen
[1995] HCA 7 Para 1

…t nonetheless valid purposes, which can never satisfy so rigorous a test[16]. [11](1988) 165 CLR 292, 294-296. [12] Pfennig v The Queen (1995) 182 CLR 461, 480. [13] Pfennig, above at 464-465. [14](2001) 75 ALJR 550 at paras 20 to 31. [15] R v O’Keefe [2000] 1 Qd R 564. [16]Examples of such other forms of evidence ar…
Edwards v The Queen
[1993] HCA 63

…pecific intent to cause grievous bodily harm Broadhurst v The Queen [1964] AC 441, considered Edwards v The Queen (1992) 178 CLR 193, distinguished Hoch v The Queen (1988) 165 CLR 292, distinguished KRM v The Queen (2001) 75 ALJR 550, considered Lowrie & Ross (1999) 106 A Crim R, considered Pfennig v The Queen (1995) 182 CLR…
Hoch v the Queen
[1988] HCA 50

…t v The Queen [1964] AC 441, considered Edwards v The Queen (1992) 178 CLR 193, distinguished Hoch v The Queen (1988) 165 CLR 292, distinguished KRM v The Queen (2001) 75 ALJR 550, considered Lowrie & Ross (1999) 106 A Crim R, considered Pfennig v The Queen (1995) 182 CLR 461, distinguished R v Brennan [1999] 2 Qd R 529,…
[1964] AC 441
[1964] AC 441 Para 1

…reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt. [8] Broadhurst v The Queen [1964] AC 441, 457. [9](2000) 112 A Crim R 114.…

Legislation cited in this decision · 0

No legislation cited in this case.

CITATION:	R v Chevathen & Dorrick [2001] QCA 337
PARTIES:	R v CHEVATHEN, Trevor Charles (appellant) DORRICK, Emily Joan Elisha (appellant)
FILE NO/S:	CA No 301 of 2000 CA No 31 of 2001 SC No 344 of 2000
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	24 August 2001
DELIVERED AT:	Brisbane
HEARING DATE:	21 June 2001
JUDGES:	McMurdo P, Thomas JA, Cullinane J Judgment of the Court.
ORDER:	Appeals allowed; convictions set aside; new trial ordered.
CATCHWORDS:	CRIMINAL LAW – CRIMINAL LIABILITY AND CAPACITY – MENS REA – ANCILLARY LIABILITY AIDING, ABETTING, COUNSELLING OR PROCURING – where the appellant mother and step father were convicted of the murder of their four year old daughter – where the child’s death was caused by fatal head injuries consistent with repeated blows to the head – whether each appellant had individually or in combination killed the deceased with the requisite intention – or if each appellant had knowledge of the other’s requisite intent CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – MISDIRECTION AND NON DIRECTION – where each appellant lied about how the child received the fatal injuries – circumstances in which such evidence may be led - Edwards direction not necessary but where a direction should have been given against the danger of concluding that a person must be guilty because they have told lies – Richens, Zoneff and Broadhurst considered CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – MISDIRECTION AND NON DIRECTION – evidence of uncharged acts of violence towards the child by both appellants rightly admitted as relationship evidence and as relevant to issue of intent – where in particular in an emotive case the jury ought to have been warned against possible misuse of such evidence CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – MISDIRECTION AND NON DIRECTION – PRESENTATION OF DEFENCE CASE – where the trial judge failed to adequately put the defence case – where it was necessary to distinguish between evidence of callousness and specific intent to cause grievous bodily harm Broadhurst v The Queen [1964] AC 441, considered Edwards v The Queen (1992) 178 CLR 193, distinguished Hoch v The Queen (1988) 165 CLR 292, distinguished KRM v The Queen (2001) 75 ALJR 550, considered Lowrie & Ross (1999) 106 A Crim R, considered Pfennig v The Queen (1995) 182 CLR 461, distinguished R v Brennan [1999] 2 Qd R 529, considered R v Callaghan [1994] 2 Qd R 300, considered R v Cox [1986] 2 Qd R 55, considered R v Lock [2001] QCA 84, CA No 151 of 2000, 13 March 2001, considered R v Lowrie & Ross [2000] QCA 405; CA Nos 95 and 92 of…